"Why Clerk? What Did I Get out of It?"

"Why Clerk? What Did I Get Out of It?" Stephen L. Wasby Introduction Supreme Court clerks, who have sought the cachet of such a prestigious position, come from lower court clerkships on relatively well-defined paths and are said to share the ideology of the justices whom they serve. Assuming that law students wishing to clerk in the U.S. courts of appeals are likewise aware of the prestige such a position carries, do they also seek to become elbow clerks for individual judges for ideological reasons or as a result of other factors? How do they end up clerking for one judge rather than another? If they have applied for a clerkship with more than one judge, what was the basis for their choices? Then, given what drew them to a federal appellate court clerkship, once they have completed it, how do they view the experience? Did it meet their expectations? What effects do they feel the clerkship has had on their career? In this article, I look first at how law students come to clerk for a particular judge-why they wish to clerk in a federal appellate court for "their judge." The second part of the article describes the clerks' retrospective evaluation of the quality of the clerkship, particularly the extent to which it met their expectations. I also examine the effect on the clerks' subsequent career and their post-clerk contact with the judge. I look at the chambers of Judge Alfred T. Goodwin of the U.S. Court of Appeals for the Ninth Circuit. This is the court studied by an organizational sociologist and lawyer who clerked there and surveyed some other chambers, and who viewed clerks as an important element in an appellate court as an organization.' Judge Goodwin has sat on the Ninth Circuit since 1971, and, after serving as the court's chief judge from 1988 through early i99i, took senior status but has continued to hear a substantial caseload. A 1995 survey ofJudge Stephen L. Washy is Professor of Political Science Emeritus, University at Albany-SUNY; Visiting Scholar, University of Massachusetts-Dartmouth ([email protected]). I wish to acknowledge the assistance of Judge Alfred T. Goodwin and his secretaries for their assistance in obtaining information about his clerks and for facilitating my survey, and of Artemus Ward, for his comments on an earlier version of the manuscript. i. Jonathan Matthew Cohen, Inside Appellate Courts: The Impact of Court Organization on Judicial Decision Making in the United States Courts of Appeals (Ann Arbor, Mich., 2OO2). Journal of Legal Education, Volume 56, Number 3 (September 2006) HeinOnline -- 56 J. Legal Educ. 411 2006 Journalof Legal Education Goodwin's clerks-from the Oregon Supreme Court, the District of Oregon, and the Ninth Circuit-provided the principal basis for this article; also used were casual conversations with some clerks and more extended conversations with the judge as part of my ongoing research on the Ninth Circuit.2 Of the seventy-five clerks contacted for interviews or to whom surveys were mailed, thirty-one (41.3 percent) participated. What can a study of one judge's clerks provide? Even an intensive study of them cannot give us answers, much less definitive ones, to all the questions noted above. Reasons include the variability in judges' use of, and interaction with, their clerks and the possibility that a judge of a particular temperament and ideology may attract clerks of a particular style.3 In this regard, it is important to note that Judge Goodwin is a pragmatic moderate who is thought to be easy to work for, and he is known to give his clerks considerable autonomy to carry out their tasks. These factors limit our ability to generalize about other chambers, but given that we lack such a study of any appellate judge's clerks, what is presented here will add to our knowledge and perhaps provide the basis for further exploration. Moreover, looking at the large number of clerks who served this judge provides a far richer picture than was previously avail- able of relationships between clerks and "their" judges, thus increasing the quantum of information we possess about these important members of the "federal judicial family." Becoming a Clerk Selection of Clerks Much of the exchange among judges about clerk selection concerns the never-ending battle over dates before which offers should not be made-dates that often seem, at least to judges far from the East Coast, to be unenforce- able. Perhaps because the judges know what they want, they speak less about the bases on which they select their clerks, despite its importance-which can be seen in the remark that clerk selection is "an important mechanism with which to obtain the desired behavior from subordinates." 4 Because judges, as principals, "work so closely with their clerks," they "are in a relatively good position to monitor law clerks as their agents," but nonetheless it is in a judge's interest to have clerks "motivated to behave as desired" rather than those "whose actions need to be controlled or corrected."5 Judge Goodwin takes most of his clerks directly from law school, although one year he selected as an elbow clerk a court staff attorney who had done some work for him on individual cases. The judge did this "when the court 2. Unattributed quotations are drawn from those conversations and from survey responses. 3. See Cohen, Inside Appellate Courts, supra note i. 4. Corey Ditslear and Lawrence Baum, Selection of Law Clerks and Polarization in the U.S. Supreme Court, 63 J. of Pol. 869, 870 (2002). 5. Id. HeinOnline -- 56 J. Legal Educ. 412 2006 'Wy Clerk? What Did I Get Out ofIt?" was trying to use the possibility of a judicial clerkship as a recruiting point in seeking high quality law graduates for staff positions," and he wished to give the idea credibility.' He would initially choose clerks "on paper," one secretary observed, and preferred to have in hand an applicant's grades through the first semester of the second year of law school and letters of reference. He did not want to receive writing samples with the applicant's first letter, as he could ask for one when he invited someone to interview.7 For him, "stellar records, academic performance, work experience, and professors' letters" might clinch having an interview, but they would "not necessarily" lead to a job offer. There had to be something more. A former clerk said that the judge liked to have those he thought in-teresting working for him, which went beyond being up- to-date on developments in legal thought, although he wanted that as well. After the judge started going to camp in Death Valley, where he would take a clerk, he would take into account whether the clerk would be open to that sort of activity. Ideology is often mentioned as a basis forjudges' selecting clerks. Although an ideological match between judge and clerk develops because "clerks gravi- tate toward judges they agree with,"' ideology is thought important because, to the extent that clerks are not selected on the basis of similarity of views between judge and clerk, more monitoring of their work might be required. However, Judge Goodwin was like many judges who did not take into account the prospective clerk's ideology or philosophical views, and he indicated he would prefer someone who was not a "Yes person" but would challenge his views before those views encountered other judges' eyes.9 Given the large number of applications, in most years the judge asked his present clerks, using general criteria he suggested, to perform a first cut before he undertook interviews. A secretary might also "semi-screen" applications, one said, and she would ask the judge not to hire someone who was a "total jerk." Clerks, with the secretary perhaps participating, were to sort the applications into three piles, for example, Possible, Maybe, and Don't Bother. The judge said he occasionally looked at the "don't bother" pile to determine whether the clerks were on the right track, because, if from elite schools, they might have a "colonial attitude" toward less prestigious places: 6. Although a few judges engaged in the practice, it did not become widespread. 7. See Letter from Judge Alfred T. Goodwin to Howard F Maltby, Associate Dean and Dean of Students, Columbia University Law School (Dec. Q7, 1989) (on file with author). 8. Thomas B. Marvell, Appellate Courts and Lawyers: Information Gathering in the Adversary System 93 (Westport, Conn., 1978). 9. In this regard, Judge Goodwin was like a rather conservative judge in another circuit who "almost always hired clerks with a liberal political bent," because, the judge was reported to have said, "If I can get my opinions by someone who has a totally different point of view, then I know I'm right." David Simon Sokolow, A Tribute to the Honorable Thomas Gibbs Gee: The Best Boss A Guy (or Gal) Ever Had, 73 Tex. L. Rev. 471, 471 0995). HeinOnline -- 56 J. Legal Educ. 413 2006 Journalof Legal Education "I tell them don't categorically throw them out," he says, because "there may be a Learned Hand in those venues."- Nonetheless, through the 2002-03 clerkship year, by far the largest number of the judge's court of appeals clerks had been from Harvard (21) and Yale (18), with roughly a half-dozen each from UCLA (8), Columbia (7), Stanford (7), and Chicago (6). Four each came from Boalt Hall (University of Califor- nia-Berkeley) and from thejudge's alma mater, the University of Oregon, and two from the University of Michigan and from the University of Virginia, with one each from eleven different schools, only two of which (Willamette and the University of Washington) are in the Northwest, the judge's home territory.' The judge preferred to interview a dozen applicants, but when those from East Coast law schools were on the West Coast during semester break and asked to see him, he relented so they would not have to return (at their own ex- pense), thus affecting the number interviewed.

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